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Geneva: What went wrong; is damage control possible?
President Mahinda Rajapaksa on Thursday cautioned External Affairs Minister G.L. Peiris over the release of media statements on important foreign policy issues without proper scrutiny. He said they should be examined carefully before being made public.
The move was prompted by an External Affairs Ministry statement personally initiated by Peiris. It was over the crisis in Ukraine where Russia later ended up annexing the Crimean peninsula. Moscow claimed that 98 per cent of the population who cast their votes in a referendum had chosen to join the Russian Federation. After the break-up of the Soviet Union in 1991, Ukraine remained a sovereign state with the Crimean peninsula within its national boundary.
It was not just the flouting of an accepted diplomatic norm, making no reference in a statement to a third country when dealing with one that was at issue. Rajapaksa referred to a newspaper account which had claimed that the Foreign Office statement amounted to justifying a bigger country interfering in a smaller one. This was particularly in the context of the Northern Province. A big power could use the Sri Lankan stance on the Ukranian crisis as an example, the report had said pointing out that it raises the spectre of big power intervention. Such a scenario, it argued could become possible if BJP leader Narendra Modi formed a government in New Delhi with the support of his southern ally, Jeyaram Jeyalalithaa, leader of the All India Anna Dravida Munnetra Kazhakam (AIDMK). She is also the Chief Minister of Tamil Nadu.
The EAM statement said: “In keeping with Sri Lanka’s consistent policy of recognising democratically elected Heads of State, the unconstitutional removal of President Viktor Yanukovych from office is regretted, and has aggravated the present political uncertainty in Ukraine. While acknowledging the justifiable concerns of the Russian Federation, Sri Lanka also welcomes attempts at de-escalating the tension……”
Peiris explained that the statement was issued after Russian Ambassador Alexander A. Karchava sought a meeting with him and made a request. Though Rajapaksa was quite conscious that Moscow was extending its fullest support to Sri Lanka against the US-backed resolution at the Human Rights Council in Geneva, his concern was over the need to exercise greater caution in formulating such statements. The idea was not to compromise the country or embarrass other nations.
Neighbouring India, which maintains very close ties with Russia over the years, issued a statement which made reference only to Ukraine. It left room for manoeuvring in the fast developing situation in Ukraine. India’s statement in contrast to Sri Lanka’s noted, “India welcomes recent efforts at reducing the tension and hopes that a solution to Ukraine’s internal differences is found in a manner that meets the aspirations of all sections of Ukraine’s population. It would be important, in this context, for a legitimate democratic process to find full expression through free and fair elections that provide for an inclusive society…….” The statement also referred to the number of Indian students in Ukraine and that a solution is found to Ukraine’s internal differences in a manner that meets the aspirations of all sections of Ukraine’s population. While New Delhi has adopted a more judicious position, Sri Lanka went head-long into attacking the European Union which had fuelled public agitation in Ukraine to oust the incumbent pro-Russian President.
What followed in Europe was that Russia jumped into Crimea, a province of Ukraine and annexed it by getting its proxy parliament in Crimea to call for a Referendum that voted for the province to join the Russian Federation – ominous signs for Sri Lanka given the relations between the Northern provincial Council and India.
What followed in Sri Lanka was that the US Charge d’Affaires William Weinstein called EAM Secretary Kshenuka Seneviratne and asked for a clarification on the Government’s statement with reference to what was meant by the words “… while acknowledging the legitimate concerns of the Russian Federation”. Ms. Seneviratne deftly passed the US embassy’s deputy (the Ambassador is in Geneva) to the Director General of the EAM’s Political division.
This week, the EAM officials ducked for cover and kept their phones off as inquiries were being made for Sri Lanka’s stand on the referendum in Crimea that led to the province being annexed to Russia and the West imposing individual-specific sanctions on leading politicians and generals in the Russian Government.
Eventually, the EAM spokesman said that all he was authorised to say were the following words; “This is a matter for the parties concerned, which are sovereign states to resolve”. The EAM’s adventurism on trying to take sides on the Ukraine issue had come a cropper and it had been restrained. Wiser counsel eventually prevailed.
This was after Rajapaksa’s warning to his External Affairs Minister at Thursday’s weekly meeting of ministers. The previous week’s one was not held. Ministers also discussed a report from Peiris on the SAARC ministerial meeting last month in the Maldives. He claimed it was a success. Other than the Foreign Office statement on the Ukranian crisis, there were also other assertions by Peiris that made front page news in recent weeks. One was Peiris’ declaration that the third US-backed resolution against Sri Lanka at the UNHRC was “illegal.” In fact, in his address to the high level segment of the Council, he rejected outright the US resolution, much the same way he did in the past two years, only to put the country deeper in the mire.
None of the five countries, among others, who staunchly backed Sri Lanka during Tuesday’s two-hour “informal” in Geneva convened by United States – Russia, China, Vietnam, Cuba and Thailand – took up that position as will be clear from the proceedings reported below. In fact, Sri Lanka’s closest ally, China did praise the sponsors of the resolution for giving ear to their representations. So did Thailand. Hence, it was Sri Lanka’s friends who had to perform the age old diplomatic practice of engaging the adversaries on behalf of a bungling External Affairs Ministry.
These countries argued and lobbied in favour of Sri Lanka making no reference to any illegality. Peiris has proffered no explanation so far how the United Nations body was acting illegally. Another case involved remarks during a news conference in Colombo this week. He said the only way the resolution in Geneva could be defeated was by voting next Saturday for the UPFA at the Southern and Western Provincial Council elections.
Thursday’s ministerial meeting also saw Economic Development Minister Basil Rajapaksa making reference to exclusive revelations by the Sunday Times. He referred to this newspaper’s INSIGHT reports which laid bare a string of “unsolicited proposals” the Government had received amidst allegations of mass scale corruption. One report lay bare that most of these “unsolicited proposals” for projects had been located in the Hambantota District. Minister Rajapaksa said the Government should respond to such disclosures by setting out its position. President Rajapaksa was to say that the practice of accepting “unsolicited proposals” was nothing new. He said successive governments in the past had resorted to such practice. There are many instances of how this has happened, he said. The remarks were endorsed by several ministers including Lakshman Seneviratne and Anura Priyadarshana Yapa.
Other than the warning from President Rajapaksa to G.L. Peiris, the EAM also appears to have faltered in lobbying Sri Lanka’s case in Geneva in the past weeks. The Ministry has not been able to have a single Non-Governmental Organisation (NGO) or an International NGO to carry out advocacy work. In marked contrast, a Pasumai Thaayagam Foundation (Green Motherland Foundation), an NGO having consultative status, has succeeded in having a four page statement in the UNHRC records as a response to Human Rights Commissioner’s report on Sri Lanka. Even a protest in Geneva on Thursday was planned in Colombo at the highest levels. A senior official chaired a meeting of businessmen of different ethnic groups to raise funds for this. All were asked to make contributions.
The Foundation makes a case on “the need for an Independent International Commission of Inquiry on Sri Lanka.” At Tuesday’s informal meeting convened by the United States, two Tamil National Alliance (TNA) representatives – parliamentarians M.A. Sumanthiran and S. Shritharan – were present. They were using the status assigned to IMADR – International Movement Against All Forms of Discrimination (IMADR). The two MPs together with Suren Surendran of the London based Global Tamil Forum were supportive of the latest US resolution. The TNA and the Global Tamil Forum are also to embark on joint a tour of African countries after the resolution is adopted. This is to canvass support for the issues before the proposed inquiry. In an unexpected development, both Sumanthiran and Shritharan paid a ‘courtesy call’ on Sri Lanka’s Permanent Representative, Ravinatha Aryasinha. The meeting took place at the Sri Lanka mission in Geneva.
The United States convened an informal consultation on its improved draft resolution at Room XIII at the Palais de Naciones from 10 a.m. to noon. The original English draft handed in to the Bureau of the Council on March 3 became a formal document on March 11 with translations in five languages recognised by the UN. The languages in the UN are English, French, Spanish, Arabic, Chinese and Russian. Further discussions, some in favour of the resolution, others against and yet others non-committal, led to more amendments. This has led to a delay in the US formulating the next draft, considered the final one. It was not handed over to the Human Rights Council Bureau when offices closed on Friday evening. Hence, it is expected to be lodged any time before 1 p.m. tomorrow – the deadline for any written amendments. Thereafter, only oral changes could be moved during the debate and the voting thereafter.
The informal consultations began with references made to the arrests in Sri Lanka of two human rights activists – Father Praveen Mahesan, (Centre for Peace and Reconciliation) and Ruki Fernando (Rights Now – Collective For democracy). They were described as persons “promoting peace, justice and reconciliation.” Participants wanted to know whether they were allowed lawyers and communication with their families. The arrests were made by the Terrorism Investigation Division (TID). They were detained under the Prevention of Terrorism Act (PTA) and released later. The fact that the release, without charges, came two days after the incident did not bode well for Sri Lanka. That too when the UNHRC was in session. The worldwide adverse publicity it generated was damning and rightly or wrongly gave credence to some of the allegations in the draft US resolution. The issue also figured at two side events arranged separately by the Human Rights Watch and Amnesty International in Geneva last Wednesday. Again, the Foreign Office in Colombo made a hash of things by issuing a factually incorrect statement on what took place (See ‘Café Spectator).
There was considerable discussion on the operative clause of the resolution (No: 
which defines the mandate of the Office of the High Commissioner for Human Rights (OHCHR) for an international investigation into alleged war crimes. The United States explained that the initial draft has been re-worded keeping the main elements. It said more ‘neutral language’ has been used with regard to Human Rights Commissioner’s conclusions after investigations into both ongoing and past violations.
Egypt, however, argued that some of the language was flawed on procedural grounds. There were references to an international mechanism as well as a national mechanism. It argued that was self-defeating since Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC) and the National Plan of Action (NPA) are recognised. Egypt also argued that the Council could not request the OHCHR but the High Commissioner herself. It noted that the High Commissioner had a broad mandate but not the OHCHR. Yet, the High Commissioner did not have the mandate to carry out a specific investigation, Egypt claimed. Pakistan pointed out that some references in the operative paragraph prejudged OHCHR investigations. Denmark was to respond that the mandate of the High Commissioner flowed from a General Assembly resolution in 1994 to carry out tasks assigned to the Human Rights Commissioner by competent bodies of the UN system to make recommendations to the Human Rights Council.
A more detailed reply came from Britain. Responding to Egypt, it said OHCHR could carry out investigations. Britain gave four examples – (1) The UN Secretary General asked the OHCHR in 1993 to investigate Abkhazia; (z) under general mandate Columbia’s Choka region in 2002; Darfur in 2004; Azerbaijan in 2005; Togo in 2005, (3) specific requirements or mandate given to OHCHR by specific inter governmental body, Afghan 1998 request; 1999 Council request regarding Honduras; 2011 Syria for OHCHR to investigate facts and circumstances and (4) investigations OHCHR carried out in Nepal a few years ago. Officials from the British Prime Minister’s Office and the Foreign and Commonwealth Office are on hand in Geneva. Cuba said it still entertained doubts whether it was within OHCHR mandate and wanted to know what kind of experts the sponsors were envisioning. Russia said it would join Cuba and Pakistan to use the word “alleged” when reference is made to violations and asked who the relevant experts were.
France noted that the revised US text was ‘very strong’, clear and balanced. Ireland added that the new draft cleared misgivings and was clearly within the mandate of the OHCHR. Montenegro was to note that the Human Rights Commissioner assessed the national process and decided to call for an international investigation. Also describing the latest draft “strong” was Norway which wanted a discussion on what it called reprisals against civil society. Sweden said that in its view the resolution was now clear enough. Austria declared that the OHCHR was fully equipped to conduct an investigation and it was within its mandate.
The US declared that on the issue of experts, several questions had been raised during the previous ‘informals.’ Taking into consideration provision in the new draft was to allow OHCHR to tap into other experts. The US also said it had heard concerns about a time line. The matter has been discussed within its core group, Mauritius, Montenegro, the Former Yugoslav Republic of Macedonia and Britain, which are co-sponsors of the resolution. The US said there were suggestions to link it to the LLRC process – lead comprehensive investigations into alleged violations by both parties during the period covered by the LLRC, basically since 2009.
The US responded to requests to change the term Special Procedures Mandate Holders (SPMH) to “experts.” The term SPMH, the US said, was used since the investigation would require individuals with specific technical expertise such as forensics. This was not meant to exclude experts. Chile, Mexico, Argentina and Ireland endorsed the move. Singapore declared that the time frame should be one year for the international investigation and it was important to set that out. It wanted the word “comprehensive” added to an “international investigation.” Namibia and Canada supported the proposal.
Thailand said it would reiterate from the two previous ‘informals,’ also endorsed by Vietnam, that the Sri Lanka Government has cooperated and was co-operating. It was supported by Indonesia and China. China also went out of the way to thank the cosponsors of the resolution for taking on board its suggestions.
The removal of the word “demilitarization” from (paragraph 9) in the preamble also drew comment. The latest draft refers to “….considerable work that lies ahead in the areas of justice, reconciliation, land use and ownership (instead of demilitarisation)….” Russia said even the reference to “land use and ownership” should be deleted. It had earlier pointed out that it was wrong to urge a sovereign nation that had defeated terrorism, to demilitarise. The suggestion was endorsed by Bolivia. The core group was in favour of not making direct reference to militarisation but specify issues related to it. TNA’s Sumanthiran joined in to say that though reference to demilitarisation has been taken out, it appears (though not expressly) in the preamble (para 16) which refers to findings and recommendations of the LLRC and its contribution to the process of ‘meaningful national reconciliation.’
Pakistan suggested other additions too. One was to include a line to say that it reaffirmed the respect for sovereignty, territorial integrity and sovereign rights of states to protect their citizens and combat terrorism. Pakistan also sought the addition of the word “unitary,” in keeping with Sri Lanka’s Constitution by changing the reference in the operative paragraph which says “in a peaceful and unified land.”
Two other issues focused on were gender-based violence and the references to the Northern Provincial Council. Russia urged that references to “sexual and gender-based violence” be deleted. The preamble in this regard (para 13) says “Expressing serious concern at the continuing reports of violations of human rights in Sri Lanka, including sexual and gender-based violence, enforced disappearances, extra judicial killings, torture……” Russia said that the Government of Sri Lanka had re-iterated its policy on sexual and gender-based violence and hence there was no need for that reference. China endorsed Russia’s suggestion and said that the entire paragraph of the resolution should be deleted because the incidents were isolated. However, Italy, Switzerland and Denmark objected to the move.
Cuba was to raise issue over (Operative Paragraph 6) a provision which calls upon the Government “to ensure that the Northern Provincial Council is able to operate effectively, in line with the 13th Amendment of Sri Lanka’s Constitution.” Cuba said it was concerned about the reference and felt it was like imposing conditions on the Government on how to deal effectively with the governance of the country. It said it would prefer not to have this reference and added if it were to remain, it should make reference to “all provincial councils.” It argued that one could not pick and choose how the Government managed the provinces. Pakistan joined in to say a reference to only one province was wholly inappropriate. It argued that was in violation of the Sri Lankan Constitution and wanted the references deleted. Egypt supported the move and said reference should be to all provincial councils. China said singling out one council was not correct and urged reference to all councils.
Canada proposed a compromise. That called for the re-wording of that paragraph to say “ensure that all provincial councils, including the NPC…” Canada said a reference should also be made to the LLRC recommendation that maximum possible devolution should be granted to the provinces. Switzerland endorsed Canada’s suggestion. The US said the reference to the NPC was based on the Human Rights Commissioner’s report.
The issues highlighted above as well as other issues raised during last Tuesday’s informal consultations will see the shaping of the latest US draft, most likely to be the final document. It will come up for debate on Wednesday and the voting is expected on Thursday. Within days thereafter, Human Rights Commissioner Navi Pillay is expected to announce the composition of the international investigation team and its terms of reference as mandated by the UNHRC.
In this backdrop, the head of a powerful body in the United States, the Senate Foreign Relations Committee told Human Rights Commissioner Navi Pillay last Wednesday that he would support a resolution that includes an international investigation in Sri Lanka “for crimes committed during the country’s civil war.”
The Commiteee’s Chairman Robert Menendez charged that “Sri Lankan government-led efforts to address these issues have proven inadequate to date, requiring a more active and urgent response by the international community.” He said, “We must be united in our message to the government of Sri Lanka: the international community will remain vigilant until we see concrete and credible accountability and genuine political reconciliation.”
Here are highlights of Senator Menendez’s letter: “A democratic and stable Sri Lanka that represents the aspirations of all its people is in the interests of the United States and the international community. I am concerned that if accountability and political reconciliation are not addressed in a serious and sustainable way, Sri Lanka could once again return to the divisions that have plagued the country throughout its history. I acknowledge that addressing issues of accountability following a conflict is a long term process in the best of circumstances. But it is also one that requires the political commitment of the host government, something that, as you note in your recent report, is clearly is lacking in Sri Lanka….
“The central government squandered any goodwill resulting from the election of the Northern Provincial Council Assembly last November by limiting the ability of the leadership of the assembly to operate and produce results for their constituents. The Chief Minister has been given little latitude to implement reforms that would benefit those living in the north. The 13th amendment to the constitution, which was supposed to empower the provinces and provide for genuine political representation at the local level, provides the legal vehicle for reform and dialogue. Unfortunately Colombo has passed up the opportunity to fully implement this amendment and has not substantively engaged with the Northern Provincial Council leadership in a meaningful dialogue on political reconciliation…..
“According to several indicators, Sri Lanka has grown increasingly repressive in the years since the end of the war. Minority religious communities, especially Muslims and Christians have been attacked with impunity by extremist groups over the past year, with an inadequate response from law enforcement authorities and the Government.
“Press freedom also continues to suffer in Sri Lanka. According to Reporters Without Borders, independent journalists are repressed which has led to self-censorship among those critical of the government. According to Freedom House’s rankings on press freedom, Sri Lanka ranks last among the countries of South Asia. US Senate Foreign Relations Committee staff recently met with journalists in Jaffna who shared graphic accounts of attacks on newspaper printing presses and individual journalists. Until journalists are indeed free to report and provide some measure of public accountability, all of Sri Lanka’s institutions – government, judiciary, business and civil society – will suffer.”
Senator Menendez has said that Pillay’s visit to Sri Lanka in August has helped “frame the issue for those who seek an inclusive and democratic future for Sri Lanka.”
The proposed adoption of the third successive US resolution by the UNHRC on Thursday is a significant turning point for Sri Lanka. During the months thereafter, if the Government continues to ignore the follow-up action on the grounds that it has rejected the resolution as “illegal,” much diplomacy will be needed to do damage control. Whether that would be possible firstly to determine what went wrong and what should be done with an ineffective, dormant, non-professional Ministry of External Affairs will no doubt worry Sri Lankans. More so since they have learnt in the past weeks how issues have played out and what portends.